Birla Textile Mills vs Presiding Officer & Anr.
2012 Latest Caselaw 6127 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+    W.P. (C) No. 2403/1998 & CM 8430/2012

%                                            Reserved on: 5th September , 2012
                                             Decided on: 11th October, 2012

BIRLA TEXTILE MILLS                                        ..... Petitioner
                     Through:             Dr. M.Y. Khan, Adv.
              versus

PRESIDING OFFICER & ANR.                                     ..... Respondents

                   Through:              Mr. K. Venkatraman, Adv. for R-2.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the Petitioner challenges the Order 27th February, 1998 passed in OP No. 18/1996 rejecting the application of the Petitioner under Section 33(2)(b) of the Industrial Dispute Act, 1947 (in short the ID Act) and the awards dated 19th February, 1996 and 27th February, 1998 passed in ID No. 303/1995(which was later on renumbered as ID No.186/96) and ID No. 186/96 respectively.

2. Briefly the facts giving rise to the filing of the present petition are that the Respondent No.2 mis-conducted on 3rd April, 1992 and after a preliminary enquiry a charge-sheet was issued to him. On 2nd June, 1992 the enquiry officer after recording of the evidence of the witnesses returned his finding, on the basis of which Respondent No.2 was dismissed from service. The Petitioner filed an approval petition under Section 33(2)(b) ID Act registered as OP No. 18/1996. In the meantime, on the Respondent No.2 raising a dispute a reference was made by the Government in the following

terms; "whether the services of Shri Kanhya Lal have been terminated illegally and/ or unjustifiably by the management and if so to what relief is he entitled and what directions are necessary in this respect?". Vide award dated 19th February, 1996 passed in ID No. 303/95 on the preliminary issue of the domestic enquiry, learned Trial Court came to the conclusion that the domestic enquiry conducted by the management was defective only for non- supply of copy of enquiry report to the workman. Thus, opportunity was granted to the workman for hearing regarding the prejudice caused to him because of non-supply of copy of the enquiry report. In the approval application i.e. OP 18/1996 on the preliminary issue regarding validity of the enquiry, it was held that the enquiry was not fair and proper. However, no opportunity was given to the management to adduce evidence as the same was afforded in ID No. 186/96 and thus the approval application was rejected. Vide the award dated 27th February, 1998 passed in ID No. 186/96 it was held that prejudice has been caused to the Respondent No.2 on account of non-supply of the enquiry report and thus the enquiry was not fair and proper. It was further held that the management has failed to prove the charge leveled against the workman and the punishment of dismissal from service is excessive and thus illegal and unjustified. The Respondent No.2 was thus entitled to be reinstated with full back wages.

3. Learned counsel for the Petitioner relying upon S.K. Singh Vs. Central Bank of India 1996 (74) FLR 2632 (SC) contends that in a case where no copy of the report is supplied and on fact no prejudice is proved, no interference can be made with the enquiry report. Similarly, in Oriental Insurance Company Ltd. Vs. S. Balakrishnan 2001 LAB I.C. 2379 (SC) it

was held that non-supply of the enquiry report could not have been held to have vitiated the entire proceedings. It is further contended that the Trial Court cannot sit in appeal over the findings in the enquiry report if the same are based on uncontroverted material. Reference is made to U.P. State Road Transport Corporation and Ors. Vs. Musai Ram and Os. 1999 (83) FLR 226 (SC). On the same facts, the second award of the learned Trial Court is contrary to the first award and the award dated 27th February, 1998 tantamount to reviewing the order passed in the approval application on 19th February, 1996. It is contended that the Trial Court has no power to review its own award and hence the impugned orders/awards are liable to be set aside.

4. Learned counsel for the Petitioner further contends that the mill is closed since 30th November, 1996, as per the orders of the Hon'ble Supreme Court, so no order as to reinstatement with back wages can be passed and only, if at all, compensation can be awarded. In this regard the factor that the Respondent No.2 had been working for a limited period and has been getting wages under 17-B from the date of award to the date of superannuation be also considered.

5. Learned counsel for the Respondent contends that the first award dated 19th February, 1996 was a preliminary award and the second award dated 27th February, 1997 is a detailed-one which considered that the prejudice has been caused to the Respondent No.2 or not, for non-supply of the enquiry report. The plea of two awards was taken by the Petitioner in the reply to the application under 17B ID Act, which plea was declined by this Court and the Division Bench. Final award was passed on 27 th February,

1998 which considered the issue of non-supply of the enquiry report in detail. It was observed that "the officer who conducted final enquiry, was the same who conducted the preliminary enquiry, it was against the principles of natural justice and also explained the reason why the workman chose to disassociate himself from the enquiry and also made his submission about the proposed punishment which was too harsh. He also pointed out that no action was taken against the co-worker Veer Singh with whom the quarrel had taken place. I find force in the submission and held that prejudice has been caused to the workman on account of non-supply of the copy of the enquiry report". The learned Trial Court further observed that "it would thus be seen that the versions of the incident therefore given by Veer Singh, R.K. Saxena and Naresh Kumar are at variance with each other. The statement made by Shri Veer Singh was at variance with his written complaint dated 03.04.1992. There was no mention in the written complaint that Shri Veer Singh had intervened in the dispute between Kanhya Lal and Uma Shankar or that he had complained about their quarrel to Shri Saxena or had asked him to resolve it. There was no mention made in written complaint that he had gone to call both the workman by Shri Saxena. There was also no mention of the fact that Kanhya Lal had abused Veer Singh on the way to Shri Saxena's room. He has tried to improve upon his complaint. In his written complaint he had not hurled abuses on Veer Singh or beat him with a shoe. His claim that he had been asked orally by Shri Mahavir Prasad Choudhary Supervisor to supervise the work of Kanhya Lal and Uma Shankar is not supported by any other witness and it is rather contradicted by Shri Naresh Kumar Supervisor Folding Department. According to Shri R.K. Saxena MW-2 Kanhya Lal and Uma Shankar have been called by him twice.

In the first meeting he had reprimanded both the workers. Veer Singh according to him was informed in the second instance. Veer Singh however does not make any mentions of the first call of the workman by Shri Saxena. Shri Naresh Kumar had stated that the workman Uma Shankar and Kanhya Lal had gone to Shri Saxena only a once and the instance had taken up in the room of Shri Saxena. The witness himself had not gone to make any complaint against and submissions has deposed about being hit on the head only once. Naresh Kumar was not named as a witness of Shri Veer Singh". Thus, there is no infirmity in the impugned awards and the petition be dismissed.

6. I have heard learned counsel for the parties.

7. As per the charge-sheet the allegations against the Respondent No.2, inter alia, were that on 3rd April, 1992 a dispute arose between one Uma Shankar and Respondent No.2 herein regarding carrying out of work and the Respondent No.2 instead of doing work, started abusing and roaming here and there. When the officers asked him about not doing the assigned work, Respondent no.2 could not give any satisfactory answer. Thereafter, Respondent No.2 was offered to work with one Veer Singh, however, Respondent No.2 started abusing Veer Singh. The Petitioner conducted an enquiry against Respondent No.2 and terminated the services of Respondent No.2. An approval application under Section 33(2)(b) ID Act was filed before the learned Trial Court for approval wherein a preliminary issue with regard to validity of the enquiry against Respondent No2. The learned Trial Court in view of the reasons given in the award dated 27 th February, 1998 passed in ID No.186/96 decided the preliminary issue against the

management, did not afford opportunity to the management to lead evidence before the Trial Court as the same was already recorded in ID No.186/1996 and dismissed the approval application.

8. Learned counsel for the Petitioner has not been able to point out any error in the impugned awards/order except stating that every case of non- supply of enquiry report will not necessarily result in prejudice to the workman. There is no dispute to this proposition. While dealing with this issue, the learned Trial Court considered the cross-complaints filed by the Respondent No.2 and co-worker Veer Singh. It is stated that no action was taken against Veer Singh and he was exonerated at the initial stage of preliminary enquiry. It may be noted that so far as the allegations leveled against the Respondent No.2, the learned Trial Court has noted that Veer Singh appeared as a witness when his examination-in-chief was recorded, however the cross-examination was deferred for the next date. On the next date i.e. 1st May, 1992 the enquiry officer proceeded to record the statement of Shri R.K. Saxena and other witnesses and no cross-examination of Veer Singh was recorded. It is thus evident that the Respondent No.2 was denied the opportunity to cross-examine the main witness i.e. the complainant.

9. As regards the non-supply of the enquiry proceedings, the learned Trial Court found force in the contention of the learned AR for Respondent No.2 that if a show cause notice had been issued to him before awarding the punishment, he would have made representation pointing out that the enquiry officer was biased as the officer who conducted the final enquiry was the same who conducted preliminary enquiry and thus the same was against the principles of natural justice, and thus the Respondent No.2 was

justified in disassociating himself from the enquiry. As regards the punishment also it was held to be too harsh. The Trial Court further recorded evidence of the management witnesses and the Respondent's witnesses and on the basis of the evidence so recorded, it came to the conclusion that the versions of the incident given by Veer Singh, R.K. Saxena and Naresh Kumar were at variance with each other. It has been found that the witnesses having proved their statements, finding of the learned Trial Court on the evidence of misconduct cannot be said to be perverse or illegal.

10. As regards the contention of the counsel regarding review of order dated 19th February, 1996 is concerned, the Trial Court granted opportunity to the parties to prove the prejudice. Thus, the award dated 19 th February, 1996 is the preliminary award and the award dated 27th February, 1998 does not review the preliminary award dated 19th February, 1996. I find no infirmity in the impugned order and awards. However, since the Petitioner Mill has already been closed, relief of reinstatement with back wages needs to be modified. Accordingly, the impugned award dated 27th February, 1998 is modified to the extent that Respondent No.2 is entitled to compensation of Rs.2 lakhs. The Petitioner is directed to pay the compensation of Rs.2 lakhs to Respondent No.2 within eight weeks from today.

11. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE OCTOBER 11, 2012/'ga'